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Patent History Materials Index - ANNUAL REPORT OF THE COMMISSIONER OF PATENTS FOR 1865

Letter from the Commissioner of Patents transmitting his Annual Report for the year 1865

United States Patent Office
January 31, 1866

Sir: I have the honor to transmit herewith the annual report of this office for the year 1865, to be laid before Congress.

I am, very respectfully, your obedient servant.

T.C. Theaker
Commissioner

Hon. Schuyler Colfax
Speaker of the House of Representatives

United States Patent Office
January 31, 1866

Sir: In accordance with the provisions of the fourteenth section of the act approved March 3, 1837, I have the honor to submit the following report of the operations of this office during the year 1865.

The receipts of the expenditures of this office for the year, and the condition of the patent fund at its close, will be seen by a glance at the following statements:

No. 1
Number of applications for patents during the year 10,664
Number of patents issued, including reissues and designs 6,616
Number of caveats filed 1,937
Number of applications for extensions of patents 78
Number of patents extended 61
Number of patents expired, December 31, 1865 914
Of the patents granted, there were to --
Citizens of the United States 6,428
Subject of Great Britain 82
Subjects of French empire 40
Subjects of other foreign governments 66
No. 2
Statement of money received during the year, namely:
On applications for patents, reissues, etc. $321,572.20
For copies and recording 27,219.64
__________
Total 348,791.84
==========
No. 3
Statement of expenditures from the patent fund
For salaries $100,032.54
For contingent expenses 75,244.43
For temporary clerks 97,453.37
For withdrawals 420.00
For refunding money paid by mistake 649.00
For judges in appeal cases 400.00
__________
Total expended 274,199.34
==========
No. 4
Statement of the patent fund
Amount to the credit of the patent fund,
January 1, 1865 $55,592.28
Amount of receipts during the year 348,791.84
__________
Total 404,384.12
From which deduct the amount of expenditures 274,199.34
__________
Leaving to the credit of the patent fund,
January 1, 1866, the sum of 130,184.78
Surplus of receipts over expenditures 74,592.50
==========

The unprecedented activity of the mechanical industry of the country since the close of the war of the rebellion is strikingly manifested by a comparison of the business of this office for the last year with that of the previous years since the organization of the office.

Table exhibiting the business of the office for twenty-nine years ending December 31, 1865

It is here seen that the number of applications for patents received in 1865, exceeded by nearly forty per cent the number filed in any previous year, and the number of caveats filed exceeded those of any previous year by more than seventy five per cent. The number of patents issued exceeded those issued in 1864, the highest previous year, by more than thirty per cent.

The receipts into the patent fund exceed those of any former year by more than thirty six per cent, while the expenditures were only increased a trifle over eight per cent, and a considerable surplus is left to the credit of the patent fund.

If the cases brought to the attention of the office continue to be as numerous as at present, it will become necessary to make such additions to the examining and clerical force of the office as will absorb a portion of the surplus earnings; while, on the other hand, if the anticipated resumption of specie payments should be attended with any general financial prostration, the receipts of the office would undoubtedly fall below the rate of the present expenses.

When the Patent Office was first established as a separate bureau, in 1836, the act provided for the appointment of a single examining clerk. The number has been increased by additional legislation at successive periods, until, by the act of March 2, 1861, the limit was fixed at sixteen examiners and the same number each of first and second assistant examiners.

As will be seen by a reference to the comparative table given above, there was a material reduction in the business of the office immediately after the passage of the act just referred to, and it was found unnecessary, until recently, to appoint the full number of examiners allowed by law. But so rapid has been the increase of inventive activity, that it is now found impossible to prevent the examinations falling largely in arrears.

The number of applications in the hands of the examiners at the close of the year, on which no action had been taken, was 1,134.

I would therefore recommend that authority be given for the appointment of four additional officers of each of the several grades, if their services shall be found necessary to the examination of the applications presented.

By the act of May 27, 1848, the salary of the examiners was fixed at twenty five hundred dollars per annum; and by the act of March 3, 1855, that of the first assistant and second assistant examiners was fixed at eighteen hundred dollars and sixteen hundred dollars per annum, respectively. The position of first assistant examiner is one of great importance and responsibility, as he is frequently called upon to decide upon the merits of applications in the absence of his principal, and it is also of almost daily occurrence that the pressure of work will be such as to force the examiner to rely mainly upon the judgment of his assistant. I am satisfied that the interests of the office and of inventors generally would be promoted if the salary of first assistant examiners were raised to two thousand dollars.

I would also most respectfully urge that the salary of the librarian be raised to twenty five hundred dollars per annum, the sum now paid the examiners. The library now contains upwards of 15,000 volumes, exclusive of some 1,500 volumes temporarily in the rooms of the Agriculture Department. Although the number of volumes is not so large as may be found in many other public libraries, the works are almost exclusively of a scientific and technological character, and it is doubtful if there is another library in the country which is so nearly complete in all the departments of practical knowledge. During the past year rather more than 1,000 new volumes have been placed upon the shelves, while the expenditures, exclusive of the sums paid for the binding and transportation of the specifications and drawings of English patents so liberally presented to the office by the Great Seal Patent Office of England, have been less than $500.

The library is constantly visited by inventors from all parts of the country, as well as by persons engaged in the various branches of scientific investigation, and it is requisite that the librarian shall be a man of broad culture and familiar with the contents of all the works under his care. As these cover the whole domain of practical science, it is manifest that the salary of the librarian should be at least equal to that of a principal examiner.

In addition to that of the examining corps, the administrative and financial business of the office requires a considerable force of clerks, who are distributed into several divisions, such as experience has shown to be most conducive to the rapid performance of the work.

I think there can be no doubt of the propriety of having each of these divisions under the charge of a clerk of the highest regular grade; and I would therefore recommend that authority be given for the appointment of six clerks of the fourth class.

The disbursing clerk is now ranked as a clerk of the fourth class. All moneys received or expended by the office pass through his hands, and he is held responsible for the accuracy of his accounts.

I can see no reason why his salary should be less than that generally paid to the disbursing clerks in the several executive departments, and I would recommend that his salary be fixed at two thousand dollars per annum.

The act of March 2, 1861, provided for the appointment of a board of examiners-in-chief, whose duty it should be to revise and determine upon the validity of decisions made by examiners when adverse to the grant of letters patent. An experience of five years has fully confirmed the wisdom of the enactment, but it has at the same time demonstrated the necessity of additional legislation upon the subject. While a fee of twenty dollars is charged upon an appeal from the examiners-in-chief to the Commissioner, no charge is made for an appeal from the examiners to the board. It results from this that appeals are taken in many cases without a shadow of a ground, and, in contested cases, merely for the purpose of delay. During the year 1865 there were 495 appeals taken to the board, of which number 166 remained undisposed of at the close of the year. If a fee of ten dollars were charged on appeals to the board it would check the number of frivolous appeals, and would be gladly paid by those inventors who are confident of the justice of their claim, as they would recognize it as securing them an early decision in place of the delay of months to which they are now so generally subjected.

After consultation with many inventors, and with solicitors in extensive practice, I am satisfied that the proposed amendment would be received with almost universal favor.

The published reports of this office, with the descriptions and illustrations of patented inventions, are not only of great value to inventors and the country, as indicative of the directions in which mechanical and scientific skill is pushing its way into new channels, but their general diffusion effects a very important reduction in the labor to be performed in this office. By a study of the report, one who has perfected an improvement in some useful machine is in many instances enabled to see at once whether his invention is novel, and if so, the particular feature which has never been the subject of a patent. Again, when an existing patent is referred to by the office as a reason for the rejection of an application, the applicant is saved the time and expense required to obtain a copy of such patent by its publication in the annual report. This is especially an improvement in some particular art or manufacture, the ingenuity of inventors in different parts of the country is stimulated into activity in that particular field, while at another period the excess of activity is turned into other paths.

For these reasons the labor of the office is much increased by the delay which has recently attended the publication of the annual reports; and the value of the reports to the public is much diminished by the late day at which they make their appearance. The heavy pressure upon the Public Printing Office, occasioned by the increased business of all the executive departments growing out of the war which has now been so happily terminated, has been one cause of the delay; and if this were all, it would not be expected that this office should complain. But the most serious obstruction to an early issue is found in the state of the law, or rather, I might say, in the absence of any law upon the subject. Although it has long been the settled practice of the government to publish the list of patents with the illustrations, there is no law authorizing such publication except as the printing of each report is ordered after the same is submitted to Congress. Some time must elapse before a contract can be made with the engravers, and it is usually April or May before the engraving can be commenced upon the patents of the previous year. It is worthy of consideration whether authority might not be given in advance for the preparation of the plates, so that the drawings could be placed in the hands of the engraver as soon as the patents are issued, and the whole work be prepared for the printer immediately after the close of the year. The number of copies to be printed might be determined by order of either house of Congress, after the report is submitted, in the same manner as now. If this course be adopted, the public will be placed in possession of the information nearly, if not quite, a year earlier than they can under the present system, and the charge upon the treasury will be in no measure increased.

Concurrent with the establishment of this office was the adoption of the policy of disposing of the models illustrative of inventions in such manner as should be conducive to a beneficial and favorable display thereof, the rooms in which they were arranged to be kept open during suitable hours for public inspection. The act also contemplated the exhibition of specimens of unpatented manufactures and works of art. The thirty years which have succeeded have seen the germ thus planted expand into magnificent proportions, until the saloons on the upper floor of the Patent Office are now among the chief public attractions of the seat of government, and thronged daily by visitors from all parts of the country as well as from beyond the ocean.

Here may be seen at a single glance, as it were, the progressive steps in the invention and perfection of the wonderful labor-saving machines of the past quarter of a century, from the first blind groping of mechanical genius up to the splendid and successful productions of the present day. The models are not only of great assistance in the examination of applications, but it is my conviction, which I am happy to know is shared by many of those most conversant with the subject, that those ideas gathered in a visit to these halls have sprung many inventions of great value to the community. It is in view of this last suggestion that the wisdom of the framers of the act stands out in the boldest relief, since the benefits which are to flow in the future from this source are almost incalculable. If this policy is to be continued, which I hardly allow myself to doubt, the attention of Congress must be turned, at an early day, to the consideration of the manner in which enlarge accommodations for this office can be provided. Of three hundred and ten cases for the reception of models, but twelve are now unoccupied, while one is barely sufficient for a single week's issue of patents. By removing the rejected models, which now fill eighty six cases, and by crowding the whole to their utmost capacity, it will probably be possible to exhibit the patented models of the next three or four years, although with much inconvenience. At the same time, it should be stated the models accompanying rejected applications are often of a high value for purposes of illustration and suggestion.

The rooms in which the business of the Patent Office is now transacted are even more inadequate for the purpose than are the galleries above. Under the administration of my immediate predecessor it became necessary to use for other purposes some of the rooms before occupied by copying clerks, and the work of copying was given out to be done by copyists at their private residences. Although the practice involves the sending the files and records of the office through the streets and into various parts of the city, I have thus far found myself unable to make any change from the utter impossibility of providing desk room within the building for the fifty six copyists now employed; and the work of this division is constantly increasing. The large increase in the number of patents requires a corresponding increase in the force employed in engrossing and recording, and the orders upon the office for copies of records and for recording assignments have more than doubled in the last four years.

In 1862 the receipts into the patent fund for
copies and recording assignments were $11,081.50
In 1863 16,976.29
In 1864 20,055.22
In 1865 27,219.64

A considerable loss of time inevitably results from the interruptions attendant upon placing two examiners, with their respective assistants, in the same room, as it is not infrequently the case that inventors, or their counsel, desire to appear in person and deliver oral arguments before the examiner. In many interference cases there are three or more contesting applicants, and while a cause of this character is being tried on one side of a small room, it is manifest that no business can be transacted on the other side which requires any close attention of consecutive thought. Notwithstanding this objection, six of the examiners are obliged to accommodate themselves to such arrangement, as there are but thirteen rooms which can be assigned to this branch of the business of the office.

It is worthy of note that the classes in which the work has fallen most behind are in this situation. If additional examiners shall be appointed, as I have recommended above, the evil will be but intensified, unless rooms can be assigned to them which are now occupied by other bureaus. The library is also crowded into a space too narrow to allow the proper arrangement of the shelves, and it is impossible to devote any convenient space for the use of those not connected with the office who desire to consult the books. In fine, while the occupation of some rooms in addition to those now at my disposal is a matter of immediate and pressing necessity, it is evident that many years cannot pass before the whole of the present building will be needed, unless some radical change shall be made in the organization and business of the office.

The most feasible plan for attaining the relief which is now so urgent is undoubtedly that of providing rooms in some building for the use of the Agriculture Department. Of the value of the services which that department has rendered to the country since its organization I cannot speak in too high terms, and with the immense territory which is just opening, for the first time, for the application of intelligent farming, the labors of the department will be proportionately increased as the bounteous stream of knowledge which it diffuses spreads over a wider and wider field. If a change of location could, in any way, impair its usefulness, its removal would be a serious matter; but I am informed that, in the opinion of the head of that department, such would not be the result. Already a portion of the clerks are placed in other rooms, and only by an entire abandonment of the Patent Office can the whole department be brought together. If it came properly within the scope of this report, I might consider the propriety of erecting a suitable building for the use of the Agriculture Department; but leaving that subject to the Commissioner of Agriculture, with whom it appropriately belongs, I must reiterate that the absolute necessities of this office demand additional rooms, which can be obtained immediately in no other way than by the removal of that department.

The law in relation to the issue of patents, as well as the practice of the office, in its general features, has been so nearly uniform for a long term of years that any violent innovation is objectionable; but there are some few matters of detail in which, in my judgment, the interests of both inventors and the public would be promoted by a change.

The twelfth section of the act of March 2, 1861, provides that all applications for patents shall be completed for examination within two years from the filing the petition, and in default thereof shall be regarded as abandoned.

Under the construction given to this statute by my predecessor, it has been the practice of the office to regard applications as abandoned when they have lain two years after a rejection without any action on the part of the inventor to procure a reconsideration. The correctness of this interpretation of the law has recently been questioned, and it must be admitted that a strict adherence to the letter would hardly sustain the rule. There is clearly no reason why an application should not be regarded as abandoned in the one case which will not weigh with even stronger force in the other. If the practice spoken of be not adhered to, it becomes impossible to determine when a rejected application can be referred to on the examination of a subsequent one, or when the model and drawing may be submitted to public inspection, as neither is proper while the application is considered as pending. There can be no hardship in requiring one who makes a claim to an invention, and who has had one or more examinations by the office, and then allows the case to rest for two years or more without action of any kind, to present a reasonable excuse for his delay if he desires to call the matter up anew. I would therefore recommend such an enactment as will leave no doubt of the legality of the course hitherto pursued.

This period of two years is recognized in several instances as the measure by which the rights of an inventor shall be determined; and I am convinced that if the same idea is extended to another case not now within its scope, the occasion for much serious injustice will be removed. Under the existing law a patent is taken out in which the inventor makes a clearly defined claim to a particular feature. The claim, it may be, does not cover all that is described in the specification or shown in the drawing, and whatever is thus left unclaimed may be used by any person, unless protected by a previous patent. Some enterprising manufacturer, who is keen enough to recognize the value of that which the inventor did not deem it worth his while to appropriate, invests his capital and begins to furnish the public with a valuable article; and after this the inventor applies for a reissue of his patent and an extension of his claim so as to give him the monopoly of that which he had before left open to the use of the world. If it appears, upon examination, that the original specification described the art or device in question, and that the holder of the patent was actually the original inventor, he is entitled to a reissue in such terms as to preclude the use of such device, except upon such conditions as he may grant. It would not be difficult in this manner to entrap a person into such an arrangement of his business or employment of his means as to leave him at the mercy of the inventor, or to compel him to pay an exorbitant royalty, when the patent is reissued with a broader claim. In my opinion it would be a judicious amendment of the law, and would prove an effective safeguard to the rights of innocent parties, if the privilege of reissuing a patent in such terms as to broaden the claim were restricted to the first two years of the life of a patent, leaving reissues for other purposes to be granted at any time, as at present.

The act of 1861 allowed applicants to pay a portion of the fee required for the issue of a patent at the time of making application, and the remainder at the convenience of the inventor, whenever he might desire the patent to be engrossed. As it was found that many patents were allowed to lie indefinitely, it was further provided, in 1863, that if the final fee were not paid within six months after the patent was passed and allowed, the invention should become public property as against the applicant. In 1865, it was further enacted that any person who fails to pay the final fee within the time limited may make a new application for the same invention within two years from the date of the allowance of the original application. Under this state of the law, cases have been brought to the attention of the Office, in which inventors have been unable to pay the fee within six months, or to file a new application within two years from the date of the application, by reason of absence from home in the service of the United States. To confiscate the property of an inventor because he has imperiled his life for the sake of his country is so glaringly unjust that it needs but to be mentioned to secure the adoption of a remedy. I would suggest that, whenever it be made to appear to the satisfaction of this Office that a failure to pay this final fee, or to renew an application within the time limited by law, has been due to the absence of the inventor from home on duty in the army or navy of the United States, the forfeiture shall be set aside and the patent issued.

The sixth section of the act of March 3, 1839, provided that, in all cases where an invention had been patented in a foreign country prior to the issue of a patent here, such patent should be limited to the term of fourteen years from the date or publication of such foreign letters patent.

On the second of March, 1861, it was enacted that all patents thereafter granted should remain in force for the term of seventeen years from the date of issue. This was construed by my predecessor as merely extending the term, but as in no wise affecting the limitation above quoted from the act of 1839. The Office, therefore, continued to antedate all such patents in the same manner as before the passage of the act of 1861; and, as my attention was not called to the point on my assuming the direction of the Office, the same practice has been followed until quite a recent period. My attention having been called, within a short time, to the subject, it has been held, after consultation with the Secretary of the Interior, that the rule of the Office, for the past five years, was clearly without any authority of law, the act of 1861 plainly operating the repeal of so much of the act of 1839 as shortens the term of the patent. Although the language of the statute is so explicit as to necessitate this construction, I have reason to believe that such was not the intention of the framers of the act, but that they merely intended to extend the term from fourteen to seventeen years, as an equivalent for the withdrawal of the privilege of extension. The belief that such was the intention of the act was so general among inventors and patent lawyers that the former ruling of the Office was almost universally accepted for nearly five years. Under this state of facts it is manifestly proper that those patents which were issued for a shortened term under the former practice of the Office should be continued in force for the full term of seventeen years from the date of their issue, if the law in relation to the subject is to stand as at present. As, however, some legislation is necessary, I would invite attention to the following considerations:

While an application for a patent is pending, the specification, model, and drawing are held strictly confidential, no knowledge of them being allowed to go beyond the office without the express consent of the inventor or his duly authorized attorney. Any other course would be full of peril to the honest inventor, as unscrupulous men could readily adopt whatever was valuable in the invention, and there would be no redress. Secrecy is the only protection available before the issue of the patent. But in cases of an invention which has been patented abroad, the full description is already open to the public, so that nothing is gained by treating the application as confidential, while there are reasons of great force for applying exactly the contrary rule to these cases. If any manufacturer or artisan meets with the published description of an invention which, upon inquiry, he learns has not been patented in this country, it is surely legitimate for him to adopt it; and this fact is recognized by the existing statute in denying a patent for an invention patented abroad if the same has been introduced into use in this country. But this provision has been hitherto almost a nullity in practice, since it is rarely possible for the Office to obtain trustworthy information as to the question of fact. No one but the applicant, or others in his interest, is cognizant of the pendency of the application, nor would the knowledge be likely to reach the persons most interested if the veil of secrecy were withdrawn. When an application is made for the extension of the term of a patent, the law requires that notice of the fact shall be given to the public by advertisement in a newspaper in the city of Washington, and in another published in that part of the country most interested adversely to the grant of the patent. I can see no reason why the same rule should not be followed in the case of inventions already patented abroad, and I would, therefore, recommend an enactment to that effect. As the cost of advertising is about twenty five dollars for each case, it would be necessary to increase the fee payable on such applications by that amount; but the inventor would be fully compensated for this by the full term for which he patent would run. The much greater probability of the fact of the invention having been introduced into use being made known to the office would deter inventors from the risk of the delay which now so frequently intervenes between the issue of the foreign patent and the applications here. In fact, I am strongly inclined to the opinion that such a change in the law would result in the much earlier introduction of foreign inventions to the American public than has heretofore prevailed.

When applications are made for the extension of patents, as the law now stands, the Commissioner alone decides the case, and from his decision there is no appeal. In my opinion this lodges with him too much power. In the class of cases referred to there is often a very heavy interest at stake, frequently amounting to hundreds of thousands of dollars, and the adverse parties are the patentee, or his heirs, on the one side, and the public on the other. The act of 1836 vested this power in a board consisting of the Secretary of State, the Commissioner of Patents, and the Solicitor of the Treasury; but with the increase of business, and the consequent frequency of applications of this character, it became difficult, if not impracticable, to assemble the board, so that, in 1848, a change was made, and the law was fixed as now. Since the establishment of the Board of Examiners-in-Chief the evil which led to the passage of the act of 1848 no longer exists, and it appears to me eminently proper that extension cases should be referred to this board for decision. And the public interest would be rendered more certainly secure if the concurrence of the Commissioner with the action of the board be required before a patent can be extended. The plan suggested possesses the advantage that the matters involved would be considered by four minds instead of one, and there would be much less danger of an extension being procured by corrupt means than where one alone decides the case, and that, too, without appeal. I suppose it to be prudent to so legislate as to guard as far as possible against fraud and corruption by making it dangerous to attempt and difficult to accomplish, rather than to seem to invite it by making it either easy or safe; and as courts for deciding important causes are seldom so constituted as to consist of but one member, why should the custom be departed from in this instance where heavy interests are depending?

With over eleven hundred applications untouched by the examiners at the commencement of the present month, and new cases coming in more rapidly than the old ones can be disposed of, I have felt unwilling to require those employed on the several classes of invention to devote the time necessary for the preparation of any elaborate review of the progress in the arts, which is evidenced by the records of the Office for the past year.

The following brief sketches will be found, however, to be well worthy the attention of all who are interested in the development of the industry and resources of our country and of mankind.

[There follows a lengthy description of various classes of invention, from which I have copied only a few brief parts. KWD]

....

The efficiency and proper use of the plough lie at the very foundation of all our national prosperity. The demand for its use is first in peace, and indispensable in war. Its use furnishes bread to the million, and commerce to the world. At no time has its efficiency been more marked than during the past few years. Notwithstanding nearly a million of men were taken from industrial pursuits in the loyal States during the first two years of the war, the third year found a larger breadth of grain upon the ground than the year preceding the rebellion. This ability to supply the deficiency of manual labor is due chiefly to improved instruments for cultivating the soil.

....

The successful termination of the war, early in the year, has produced a notable reduction of the number of applications for inventions and improvements in warlike implements; the number is, however, still nearly double that of the year preceding the war, and will most probably remain permanently higher, although destined, no doubt, to fall considerably below its present amount.

....

The havoc of war has begotten a multitude of inventions to supply the place of amputated arms and legs, and from among the mass some may be selected as examples of skill and successful operation.

One inventor heralded his application by the introduction of a lad wearing his artificial leg, who had learned to run and to skate; another, a soldier, sent a letter to the office written by an artificial hand and arm of his own invention. The chirography was rough but legible.

....

In hoops for skirts, clasps are formed adapted to every desired bend of the hoop. The covered wire is sized by being carried around cylinders, between sizing rollers and over heated drums. The waists of ladies' dresses are gathered upon a hoop previously adjusted to the waist of the wearer, said hoop having a groove on its exterior; and an elastic band fitted therein holds the gathered material in position.